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Wasim vs State Nct Of Delhi on 18 July, 2019

Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1061 of 2019
(Arising out of SLP (Crl.) No.193 of 2019)

WASIM
…. Appellant
Versus

STATE NCT OF DELHI …. Respondent (s)

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. On receipt of information on 27.10.2015 about a

suicide, PW-23 Sub-Inspector Bijender Dahia attached to

Police Station Aman Vihar rushed to Nithari village, Delhi.

By the time he reached, the body of the deceased i.e.

Moniya had already been brought down from hanging

position. Ashwani (PW-12), the brother of the deceased was

found sitting besides the body of the deceased. The elder

brother of the Appellant was also present. A suicide note

was seized. PW-23 sent the body of the deceased for post-

mortem. The statement of Ashwani was recorded by PW-23.

Inquest was conducted by the Executive Magistrate on the

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next day. According to the post-mortem, the cause of death

of Moniya was due to asphyxia as a result of ante mortem

handing.

2. FIR was registered on the statement of Sunita (PW-11),

the mother of the deceased on 04.11.2015. A charge sheet

was filed on 05.02.2016. Later, charges were framed

against the Appellant under Section 498A/Section304B of the

Indian Penal Code, 1860 (hereinafter ‘ SectionIPC’). 23 witnesses

were examined by the prosecution and several documents

relied upon to prove the guilt of the Appellant. The Trial

Court convicted the Appellant under Section 498A and Section306

IPC. Sentence of three years’ simple imprisonment for the

offence under Section 498A IPC and four years simple

imprisonment for the offence under Section 306 IPC was

imposed on the Appellant. The appeal filed by the Appellant

was partly allowed by the High Court. The Appellant was

acquitted for the offence under Section 306 IPC. The

conviction and sentence under Section 498A IPC was upheld

by the High Court. Hence, this appeal.

3. The deceased Moniya who was working as a teacher

was married to the Appellant on 02.05.2015. PW-11 Sunita

deposed that her daughter Moniya was being harassed by

the Appellant by demanding dowry. She testified in the

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Court that on two occasions she gave Rs.40,000/- and

Rs.50,000/- to the deceased for handing over the same to

the Appellant to meet his demands of dowry. She stated

that the same was not informed either to her husband or

her son and that she made the payments from her savings.

She also spoke about the demand for a bigger car. The

Appellant was working in Nagercoil District, Tamil Nadu and

he was demanding for air fare to travel to the place of his

work. PW-11 further stated that she was informed by the

deceased that the Appellant had extra marital relations with

one Poonam and he informed the deceased that he

intended to marry Poonam after leaving the deceased.

4. The statement of PW-12 Ashwani was recorded on the

day of the incident in which he did not mention about the

demand of dowry by the Appellant. He stated that the

deceased was depressed by the behavior of the Appellant.

PW-10 Sukhbir, the father of the deceased, who reached the

place of incident also did not accuse the Appellant of any

demand of dowry. The suicide note which was seized from

the place of incident was proved on a comparison of the

admitted hand writing of the deceased from the school

records with the suicide note. The suicide note also did not

contain any allegation of demand of dowry by the Appellant.

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The suicide note which was reproduced in the judgment of

the Trial Court is as follows:

“Relations have come heavy on dreams”
Always lived with head ups and never did nay work
by which I have to down my neck.

I love a lot to my dad and brother. Today they have
tears in their eyes
I have broken from inside. I love a lot to my
profession and education.

I have done nothing that is why I cannot tolerate
I want to live my life with Master Ji, He also
manipulated. I do not have any complaint to
anyone.

5. After examining the evidence on record, the Trial Court

held that the demand of dowry was not proved. However,

the Trial Court was convinced that the prosecution proved

the extra marital relationship of the Appellant with Poonam.

The oral evidence relating to the Appellant informing the

deceased about such extra marital relations to the

deceased was accepted by the Trial Court. Having found

that the Appellant was guilty of mental cruelty, the Trial

Court convicted the Appellant under Section 498A, SectionIPC.

Though, there was no charge under Section 306 IPC, relying

upon the judgments of this Court, the Trial Court was of the

opinion that the conviction under Section 306 IPC was

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permissible. The Trial Court found that the offence under

Section 306 IPC was made out against the Appellant and

convicted him.

6. The main issue that was considered by the High Court

in the appeal against the judgment of the Trial Court was

the correctness of the conviction under Section 306 IPC

without a charge being framed. The Appellant contended

before the High Court that the charge that was framed

against him was under Section 304B, SectionIPC and that he could

not have been convicted under Section 306 IPC. Placing

reliance on the judgments of this Court, it was held that a

conviction under Section 306 IPC is permissible even

without a charge being framed in a case where the accused

is charged under Section 304 B IPC. The High Court held

that such conviction would not amount to failure of justice.

However, the High Court found no convincing evidence to

hold that the Appellant abetted the commission of suicide

by the deceased. The Appellant was acquitted for the

offence under Section 306 IPC on the basis that there was

no evidence to show that the deceased was subjected to

mental or physical cruelty before her death. The High

Court affirmed the conviction of the Appellant under Section

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Section498A IPC by holding that there was sufficient evidence on

record regarding the demand of dowry.

7. The acquittal of the Appellant under Section 306 IPC

has become final as no appeal is preferred by the State

against the judgment of the High Court. Ms. Aishwarya

Bhati, learned Senior Counsel on instructions submitted that

a decision was taken not to file the appeal in view of the

fact that the Appellant has already undergone the sentence

under Section 498A IPC. The learned counsel for the

Appellant submitted that his conviction under Section 498A

is impermissible after he was acquitted for the offence

under Section 306 IPC. He relied upon the reasons given by

the Trial Court regarding the non availability of any evidence

pertaining to demand of dowry.

8. Ms. Bhati, learned Senior Counsel for the State

submitted that it is clear from the evidence of the family

members of the deceased that there was demand of dowry

by the Appellant and the High Court was justified in holding

that the Appellant is guilty of committing an offence under

Section 498A.

9. The conviction of the Appellant by the Trial Court

under Section 498A was not for demand of dowry. The

conviction under Section 498A was on account of mental

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cruelty by the Appellant in having an extra marital relation

and the threats held out by him to the deceased that he

would leave her and marry Poonam.

10. The High Court acquitted the Appellant under Section

306 IPC by reaching a conclusion on the basis of evidence

that the charge of abetment of suicide on part of the

Appellant was not proved. Without any discussion of the

evidence pertaining to demand of dowry and without

dealing with the findings recorded by the Trial Court

regarding the demand of dowry, the High Court held that

the offence under Section 498A was made out.

11. Cruelty is dealt with in the Explanation to Section 498A

as follows:

[498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished
with imprisonment for a term which may extend to
three years and shall also be liable to fine.

Explanation.—For the purpose of this section,
“cruelty” means—

(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or any

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person related to her to meet any unlawful demand
for any property or valuable security or is on
account of failure by her or any person related to
her to meet such demand.]

12. Conviction under Section 498A IPC is for subjecting a

woman to cruelty. Cruelty is explained as any wilful conduct

which is likely to drive a woman to commit suicide or to

cause grave injury or danger to life, limb or health.

Harassment of a woman by unlawful demand of dowry also

partakes the character of ‘Cruelty’. It is clear from a plain

reading of Section 498A that conviction for an offence under

Section 498A IPC can be for wilful conduct which is likely to

drive a woman to commit suicide OR for dowry demand.

Having held that there is no evidence of dowry demand, the

Trial Court convicted the Appellant under Section 498A IPC

for his wilful conduct which drove the deceased to commit

suicide. The Appellant was also convicted under Section

306 IPC as the Trial Court found him to have abetted the

suicide by the deceased.

13. Section 306 IPC provides for punishment with

imprisonment that may extend to ten years. There should

be clear mens rea to commit the offence for conviction

under Section 306 IPC. It also requires an active act or

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direct act which led the deceased to commit suicide seeing

no option and this act must have been intended to push the

deceased into such a position that he/she committed

suicide – SectionSee M. Mohan vs. State1. To attract the ingredients

of abetment, the intention of the accused to aid or instigate

or abet the deceased to commit suicide is necessary – See

Pallem Deniel Victoralions Victor Manter vs. State of Andhra

Pradesh2. Whereas, any wilful conduct which is likely to

drive the woman to commit suicide is sufficient for

conviction under Section 498A IPC. In this case, the High

Court recorded a categorical finding that neither mental nor

physical cruelty on the part of the Appellant was proved.

Therefore, the conviction under Section 498A IPC is not for

wilful conduct that drove the deceased to commit suicide.

The High Court held that though there was no demand of

dowry soon before the death, the prosecution proved dowry

demand by the Appellant immediately after the marriage.

14. The High Court ought not to have convicted the

Appellant under Section 498A for demand of dowry without

a detailed discussion of the evidence on record, especially

when the Trial Court found that there is no material on

record to show that there was any demand of dowry. The

1 (2011) 3 SCC 626
2 (1997) 1 Crimes 499 (AP)

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High Court did not refer to such findings of the Trial Court

and record reasons for its disapproval.

15. For the aforementioned reasons, the judgment of the

High Court is set aside. The appeal is allowed.

……………………………..J
[L. NAGESWARA RAO]

..………………………….J
[HEMANT GUPTA]
New Delhi,
July 18, 2019.

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